Madras High Court
S.Sivabalan vs The Deputy Superintendent Of Police on 19 January, 2011
Author: S. Manikumar
Bench: S.Manikumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 19.01.2011 CORAM THE HONOURABLE MR.JUSTICE S.MANIKUMAR W.P.No.20174 of 2010 M.P.No.1 of 2010 S.Sivabalan .. Petitioner ..Vs.. 1.The Deputy Superintendent of Police Tiruppur Sub-Division, Tiruppur 641 607. 2.The Inspector of Police, Tiruppur South Police Station, Tiruppur 641 607. .. Respondents Prayer: This Writ Petition is filed under Article 226 of the Constitution of India, seeking for a writ of Certiorarified Mandamus, to call for the records, relating to the proceedings of the Deputy Superintendent of Police, Tiruppur Sub-Division, the first respondent herein, made in Na.Ka.No.577/SDOT/MIKE/2010, dated 18.08.2010, quash the same and consequently, direct the respondents herein to permit the petitioner to hold a public meeting addressed by Thiru.Nanjil Sampath at Tiruppur, Tiruppur District. For Petitioner : Mr.G.Devadoss For Respondents : Mrs.Lita Srinivasan Government Advocate O R D E R
The petitioner is a member of a Political Party. Seeking permission to conduct a public meeting on 24.08.2010 at Arisikadai Veethi, Tiruppur, he submitted an application on 11.08.2010 to the Inspector of Police, Tiruppur South Police Station, the second Respondent herein. The All Students Federation organized a Hall Meeting on 01-03-2009 at Harvey Gurusamy Marriage Hall at Tiruppur, in which, his party speaker, Thiru.Nanjil Sampath, addressed the public. Two other meetings were also organized on 09-09-2009 and 17-06-2010, wherein, Thiru.Nanjil Sampath was the special speaker, to address the meetings. Believing that necessary permission would be granted by the second respondent, the petitioner had arranged necessary arrangments to conduct the public meeting, including making payments in advance for Electrical Generators, Electrical Lights, Public Address System, Hiring of chairs for providing seats to the public who attend the meeting, Printing of Wall Posters, Bit notices, etc. Without considering the Fundamental Right of a Citizen to have freedom of speech and expression to address a public meeting, by impugned order, dated 18-08-2010, the Deputy Superintendent of Police, Tirupur Sub-Division, Tiruppur, 1st respondent herein, denied permission to conduct the public meeting scheduled on 24.08.2010, on the ground that an action had already been initiated against the abovesaid Speaker, by the Tiruppur North Police for speaking against the Sovereignty of India and taking into consideration of the prevailing situation in Tiruppur and the existence of a regulatory order under Section 30(2) of the Police Act and if permission is granted, there would be a possibility of law and order problem. Being aggrieved by the same, the petitioner has preferred the present Writ Petition, seeking to quash the order, dated 18.08.2010 and consequently, for a direction to the Respondents herein to grant permission to conduct a public meeting, addressed by Thiru.Nanjil Sampath, at Tiruppur District.
2. Assailing the correctness of the impugned order and placing reliance on a judgments of this Court in P.Nedumaran v. State of Tamil Nadu represented by Secretary to Govt. Home Department and others reported in (1999 1 law weekly (Criminal) 73, W.P.No.18208 of 2003, dated 07.07.2003 [S.Sivabalan v. State of Tamil Nadu], C.J. Rajan v. Deputy Superintendent of Police reported in 2008 (3) MLJ 926, Patchaimal K.T. v. The Superintendent of Police, Kanyakumari and Ors. reported in 2009 W L.R. 65, W.P.No.26007 of 2008, dated 03.11.2008 [Marumalarchi Dravida Munnetra Kazhagam v. State of Tamil Nadu], H.C.P.No.400 of 2009, dated 21.04.2009 [S.Sasikala Sambath v. State of Tamil Nadu and others] and C.Sakthivel v. Commissioner of Police reported in 2010 (5) CTC 134, Mr.G.Devadoss, learned counsel for the petitioner submitted that denial of permission to conduct a public meeting infringes the Constitutional guarantee of freedom of speech and expression, guaranteed under Article 19(1)(a) and 19(1)(c) of the Constitution of India.
3. Learned counsel for the petitioner further submitted that he belongs to a political Party, registered with the Election Commission of India under Section 29 A of the Representation of People Act and it has not been declared as an unlawful association in India and therefore, there cannot be any total restriction in the democratic State to express their views about the pros and cons of any political system and propagate their political ideology. He further submitted that the decision of the first respondent, in denying permission to hold a public meeting, on the ground that if permission is granted, there would be a possibility of law and order problem, is actuated with mala fide intention and such decision has been taken not to cause any embarrassment to the ruling party.
4. Placing reliance on a C.J.Rajan Vs Deputy Superintendent of Police. Mayiladuthurai and another reported in (2008) 3 MIJ 926, learned counsel for the petitioner submitted that Section 30(2) of the Police Act, provides only a regulatory power and not a blanket power to stifle any democratic dissent of the citizens by the police. He further submitted that just because a criminal has been registered against a party speaker by the Tiruppur North Police Station, apprehending that the some law and order problem. Permission to hold a public meeting cannot be denied in an arbitrary manner.
5. Placing reliance on a decision of the Apex Court in Life Insurance Corporation of India Vs Prof. Manubai Shah reported in (1992) 3 SCC 837 : A.I.R.1993 SC 173, learned counsel for the petitioner further submitted that every citizen has a undoubted right to lay what sentiments he pleases before the public. Freedom to air one's view is the life line of any democratic institution and any attempt to stifle, suffocate or gag this right would sound death-knell to democracy and help usher in autocracy or dictatorship. Therefore, he submitted that restriction imposed for conducting public meeting, arranged by the petitioner, with the participation of the abovesaid speaker is arbitrary.
6. Learned counsel for the petitioner further submitted that even after the the registration of the criminal case, referred to in the impugned order, public meetings were permitted by the respondents on 09.09.2009 and 17.06.2010 and therefore, it is not open to the respondents to cripple the most cherished right, viz., freedom of speech and expression. In this context, he drew the attention of this Court to a decision of the Division Bench of this Court in H.C.P.No.400 of 2009, dated 21.04.2009 [S.Sasikala Sambath v. State of Tamil Nadu and others], which set aside an illegal order of detention, against Thiru.Nanjil Sampath, for addressing a meeting, for which, a criminal case in Cr.No.1127 of 2009 has been registered. He drew the attention of this Court that the very same criminal case has been cited, as the reason, for rejecting the request of the petitioner to hold the public meeting.
7. Learned counsel for the petitioner submitted that the only ground stated in the impugned order is regarding registration of criminal case. Though a criminal case has been registered in the year 2009, no charge sheet has been filed and therefore, in the light of the decisions stated supra, protecting the constitutional right of a Citizen guaranteed under Articles 19(1)(a) and 19(1)(c) and 21, the impugned order is liable to be set aside.
8. On the basis of the counter affidavit filed by the Deputy Superintendent of Police, Tiruppur, first respondent herein, Mrs.Lita Srinivasan, learned Government Advocate submitted that a petition, dated 11.08.2010 submitted by the petitioner, was received in the Tiruppur South Police Station on 11.08.2010 in CNO.247/10/F2 PS/Mike/2010, seeking permission to conduct a public meeting on 24.08.2010 at Arisikkadai Veedhi, Tiruppur. In the abovesaid petition, the petitioner has stated that Thiru.Nanjil Sampath, a propaganda Secretary of the MDMK presides over the Meeting and would address the public. Ramzan and Vinayagar Sathurthi Festivals fell on 10.09.2010 and 11.09.2010 respectively and due to the sensitiveness of the above said festivals, Tiruppur Sub-Division was under strict surveillance of the Police.
9. Learned Government Advocate further submitted that in order to maintain a law and order problem, Public Meetings and processions affecting public tranquility were restricted. For the reasons stated supra, the Inspector of Police, Tiruppur South Police Station, second respondent herein, did not recommend public meeting organised by the MDMK, and presided by the abovesaid speaker. Therefore, after considering the recommendations of the 2nd respondent and the situation prevailing in Trippur sub-division, the 1st respondent, did not accord any permission to conduct the public meeting.
10. Learned Government further submitted that earlier, Thiru.Nanjil Sampath delivered a speech on 01.03.2009, at 2.00 p.m., at Harvey Kumarasamy Kalyana Mandapam, in Tiruppur North Police Station Limit, organized by a Student Federation, in respect of the present conditions of Tamil Population in Sri Lanka. During his speech, he supported the banned organization LTTE and its leader, Prabaharan and incited the public to revolt and indulge in violence against the Central Government. His speech was against the Sovereignty of the Country and therefore, a case in Tiruppur North Police Station Crime No.1127 of 2009 u/s 153-B(l)(a) and 13(l)(b) of Unlawful Activities Prevention Act, 1967 has been registered against him and that he was arrested for committing the above said offences and for acting in a manner prejudicial to the maintenance of public order.
11. Learned Government Advocate further submitted that there were two festivals, during which, the petitioner sought for permission to hold a public meeting and due to sensitiveness, Tiruppur Town was under strict surveillance of the Police. Denying the contention of the petitioner that permission to conduct a public meeting was refused for extraneous reasons and actuated with mala fide intention, she submitted that the said contention is liable to be rejected for the reason, even subsequently, as on 09.09.2009 and 17.06.2010, Thiru.Nanjil Sampath, was permitted to address meetings at Tiruppur.
12. It is the contention of the learned Government Advocate that avenue for conducting the public meeting at Arisikkadai Veedhi, Tiruppur, is a Muslim populated area and in order to maintain the law and order problem and peace, the Police, having regard to the welfare of the public, denied permission to the writ petitioner to hold a meeting to be addressed by Thiru.Nanjil Sampath. According to her, there was no ill-will or arbitrariness in preventing the said speaker from addressing the pubic. Restriction imposed by the first respondent is only reasonable and does not infringe the constitutional rights of a Citizen. Finally, she submitted that the prayer sought for in the present Writ Petition has become infructuous and therefore, for the abovesaid reasons, prayed for dismissal of the Writ Petition.
Heard the learned counsel for the parties and perused the materials available on record.
13. Before adverting to the factual aspects, it is desirable to consider some of the decisions relied on by the learned counsel for the petitioner, as regards conduct of public meetings and the power of the police to regulate.
14. In P.Nedumaran v. State of Tamil Nadu reported in 1999 (1) LW (Crl.) 73, the Commissioner of Police, Madurai, has withdrawn or cancelled the permission which was earlier given for holding a public meeting. A conference was organised by Tamizhar Desiya Iyakkam, a registered political party with the Election Commission of India and that the forum was vitally interested in the happenings of Sri Lanka. Though permission was granted by the Commissioner of Madurai, to hold conference, the application submitted to the Corporation of Madurai was rejected on the ground that the Commissioner of Police had objected to the holding of the conference. The petitioner changed his venue to a Hotel, but the owner of the hotel also refused to permit the meeting to be held. The petitioner thereafter called upon the Commissioner of Police to state his reasons as to why permission granted earlier was withdrawn. The reply given by the Commissioner was sought to be quashed. After considering the rival submissions, powers of the Police under Section 41 of the Madras City Police Act, Constitutional guartantee under Article 19 and the persistent support extended by the forum to LTTE, declared as an unlawful association under the Unlwful Activities (Prevention) Act, 1967 and under Section 13(2) of the said Act, a learned Single Judge of this Court, at Paragraphs 15 to 19, held as follows:
"15. The rights conferred on the citizens by Article 19 of the Constitution are precious rights and are not to be lightly breached or restricted by the State or any functionary of the State. Any regulation of exercise of those rights must be for the purposes specified in Article 19 of the Constitution itself, and that power must be so- exercised as to subserve the larger public good. The power to impose restrictions is not the power which is available for exercise in an arbitrary manner or for the purpose of promoting the interest of those in power, or for suppressing dissent. Democracy can be made dynamic and truly alive only when there is free market for ideas and discussion and debate is not only permitted but is encouraged. All expression of opposing view point cannot be regarded as dangerous to the safety or security of the country and all expressions which do not find the approval of those exercising the power of the State cannot be regarded as harmful to the State and to the public order.
16. The power conferred on the Commissioner under Section 41 of the Madras City Police Act is sweeping, that power is meant to be exercised with great care and caution. The Madras City Police Act is a pre-Constitution enactment, and the powers conferred on the authorities at a time when the country was under the colonial regime, and during the period when suppression of dissent was considered to be a legitimate policy of the State, cannot be exercised after the enactment of the Constitution in the same manner, as it was exercised earlier. The Intelligence Report placed before the Court shows that the police still have the attitude which does not seem to recognise that the country is a democractic nation, where every citizen has a right to full and equal participation in the process of Government. No citizen can be regarded as an enemy of the State merely because he has voiced a view which is not the one favoured by those in authority.
17. The fact that the police are vested with power should not make them assume that, that power is available for exercise in any manner that they consider fit. That power is to be exercised strictly within the ambit of the provisions of the Constitution, more particularly, the requirement that any restriction placed on the exercise of fundamental rights should be a reasonable restriction, and the restrictions to placed should be shown to be essential, having regard to the permissible purpose for which restrictions may be imposed.
18. The fact that the petitioner-Association is voicing a view point which may not be popular cannot be a justification for preventing that point of view being projected. The petitioner-Association has not been declared as unlawful Association. If the petitioner-Association does anything which constitutes an offence under the Unlawful Activities (Prevention) Act, it is always open to the authorities to initiate prosecution under that Act.
19. The meeting which the petitioner had wanted to hold was to have been held on the 19th January,-1997, well over a year ago. If the petitioner were to make a fresh application for holding a meeting, the authorities ought not to refuse permission mechanically. They should be in a position to satisfy the Court that such refusal falls strictly within the ambit of the permissible grounds for restricting the exercise of fundamental rights under Article 19 of the Constitution. A mere apprehension that some disturbance may be caused in the meeting place would not be sufficient. Under Sec. 41 of the Madras City Police Act, the police have the power to depute one or more police officers to be present at the meeting. If, at the meeting, such police officers were to find that anything illegal was being done, it would be open to them to take such further action as may be considered necessary in the circumstances. A blanket order refusing to permit the meeting to be held is not the method of relating the exercise of fundamental rights of free speech, expression and assembly."
15. In W.P.No.18208 of 2003, dated 07.07.2003 [S.Sivabalan v. State of Tamil Nadu], the petitioner therein challenged an order, dated 11.06.2003, refusing to permit him to conduct a public meeting, on behalf of his party, viz., Marumalarchi Dravida Munnettra Kazhagam at Thirupur on the ground that the public speaker, Mr.Nanjil Sampath continues to criticise the Government in a defamatory manner, creating dissatisfaction among the public and affecting public peace and tranquility. Recording the submission of the learned counsel for the petitioner that the petitioner therein would give necessary undertaking before the Police concerned to the effect that, "he would not make or utter any word, imputing damage to any person, much less any political leader of the ruling party, intending to harm the reputation of such person/persons in the public meeting, for which permission was sought for and having regard to the Constitutional provisions under Article 19(1)(a) and 19(1)(c), this Court set aside the impugned order therein, holding that there cannot be any legitimate denial of the right to freedom of speech and expression conferred under the abovesaid Articles. Accordingly, this Court directed the Deputy Superintendent, Thirupur Sub Division, Thirupur, fourth respondent therein, to pass appropriate orders, giving permission to the petitioner therein, to hold a public meeting at Thirupur, or any other place, if it was so required, provided the petitioner therein gives an undertaking, as agreed by his learned Counsel.
16. In C.J. Rajan v. Deputy Superintendent of Police reported in 2008 (3) MLJ 926, an application was filed by the organiser of the People's Watch, a Non-Governmental Organisation, functioning as a Human Rights Watch Group in the State of Tamil Nadu, regarding increased encounter killings in the State of Tamil Nadu. The said application was rejected, stating that there is likelihood of there being a breach of peace and disturbance to public tranquility, in the event of conducting such meetings. After considering the judgment of the Supreme Court in Himat Lal K. Shah v. Police Commissioner, Ahmedabad reported in 1973 (1) SCC 227, P.Nedumaran v. State of Tamil Nadu reported in 1999 (1) LW (Crl.) 73, S.Rangarajan v. P.Jagjivan Ram reported in 1989 (2) SCC 574, a Division Bench of this Court, at Paragraph 12, held as follows:
"12. Therefore, it is too late for the respondents to refuse permission to hold a meeting on a matter of public importance. With respect to the respondents' reliance upon Section 30(2) of the Police Act, 1861, it can only be said that it enables the respondents to direct the control and conduct of all assemblies and processions on public road or in the public streets or thoroughfares and to prescribe the Rules by which and the times by which the processions may pass and Section 30(2) and (3) on which reliance was placed, is extracted below:
Sec 30(2):" He may also, on being satisfied that it is intended by any persons or class of persons to convene or collect an assembly in any such road, street or thoroughfare, or to form a procession which would, in the judgment of the Magistrate of the district, or of the sub-division of a district, if uncontrolled, be likely to cause a breach of the peace, require by general or special notice, that the persons convening or collecting such assembly or directing or promoting such procession shall apply for a licence.
(3) On such application being made, he may issue a licence, specifying the names of the licensees and defining the conditions on which alone such assembly or such procession is to be permitted to take place, and otherwise giving effect to this section."
17. It is also worthwhile to consider the decision of the Supreme Court in Himat Lal K. Shah v. Police Commissioner, Ahmedabad reported in 1973 (1) SCC 227 and S.Rangarajan v. P.Jagjivan Ram reported in 1989 (2) SCC 574, relied on by the Division of this Court in C.J. Rajan's case.
"10. In this context, it is necessary to refer to the judgment of the Supreme Court in Himat Lal K. Shah v. Police Commissioner, Ahmedabad (1973 (1) SCC 227) rendered by a Constitution Bench of the Apex Court, wherein, the Court struck down Rule 7 of the Rules framed under the Bombay Police Act on the ground that Rule, which empowered the Commissioner of Police to refuse permission to hold meetings without giving any guidance under the Rule and thereby conferring an arbitrary discretion, was an unreasonable restriction on the freedom of association and freedom of assembly guaranteed under Article 19 of the Constitution. The Court also held that the word "regulating" in Section 33(1)(o) of the Bombay Police Act would include the power to prohibit and impose the condition that permission should be taken a few days before the holding of the meeting on a public street. Mathew, J., dissented from the view of the majority and held that the power to regulate did not include the right to prohibit and the permission sought for holding a meeting ought not be refused. The majority opinion was that regulation is necessary to enable citizens to enjoy the various rights in crowded Public Streets, and that the State can make regulation in aid of the right of the assembly of each citizen and can impose reasonable restrictions in the interest of public order.
11. The Supreme Court also in S.Rangarajan v. P.Jagjivan Ram reported in 1989 (2) SCC 574 [1989 (2) SCC 574] held that freedom of speech under Article 19(1)(a) of the Constitution of India means the right to express one's own opinion by word of mouth, printing, picture or is any one manner of ideas made through any and the communication of ideas made through any medium. Such right, however, was held to be subject to reasonable restrictions in the larger interest of the community and the country as set out in Article 19(2) of the Constitution. Those restrictions are intended to strike a proper balance between the liberty guaranteed, and the social interests specified under Article 19(2). The Court emphasised that the interest of freedom of expression and social interest cannot be regarded as of equal weight and the court's commitment to freedom of expression demands that it cannot be suppressed unless the situations created by allowing the freedom are pressing and the community interest is endangered. The anticipated danger should not be remote, conjectural or farfetched, but should have proximate and direct nexus with the expression. The expression of thought should be intrinsically dangerous to the public interests. It should be inseparably locked up with the action contemplated like the equivalent of a "spark in a powder keg."
18. In Patchaimal K.T. v. The Superintendent of Police, Kanyakumari and Ors. reported in 2009 W L.R. 65, the District Secretary of All India Anna Dravida Munnetra Kazhagam (AIADMK) has sought for permission for conducting a demonstration in front of the District Collector's Office, Nagercoil for certain demands. By an order, dated 02.08.2008, the Deputy Superintendent of Police, Nagercoil had refused to grant permission, on law and order grounds and also based on the Regulatory Order issued under Section 30(2) of the Police Act, 1861. Again, a representation was made by the writ petitioner therein, seeking permission to conduct a demonstration in front of Collectorate on 05.08.2008, for the removal of a Minister from the Council of Ministers. Once again, the Deputy Superintendent of Police, Nagercoil, passed an order, dated 03.08.2008, refusing permission. This time, the reason assigned was that in the demonstration, caste groups were planning to participate and create problems. The subsequent applications, seeking permission to conduct public meeting, were also refused. After considering the decisions stated supra and of the powers of the Police, under Section 30(2) of the Police Act, 1861, the Court held that the provision is only a regulatory power and not a blanket power, to stifle any democratic dissent of the citizens, by the Police and at Paragraph 18 of the said judgment, this Court held as follows:
"18. Therefore, in the light of the above binding legal precedents, set out by the Hon'ble Supreme Court, this Court has no hesitation to set aside the order passed by the second respondent, dated 03.08.2008 and consequently, taking into account the fresh request made by the petitioner, vide his application dated 13.08.2008, the second respondent is directed to accord the permission to conduct the demonstration on 25.08.2008 at 10 a.m., before the District Collectorate at Nagercoil. If the second respondent is of the view that necessary bandobust is to be made, he may also accord the same."
19. In W.P.No.26007 of 2008, dated 03.11.2008 [Marumalarchi Dravida Munnetra Kazhagam v. State of Tamil Nadu], the petitioner therein challenged an order, dated 29.10.2008, passed by the Assistant Commissioner of Police, High Court Circle, Chennai, the fourth respondent therein, by which, the permission sought for conducting a procession has been rejected. While assailing the correctness of the order, the petitioner therein placed reliance on decisions of the Supreme Court in Prakash Singh and Others v. Union of India reported in 2006 (8) SCC 1 and State of Andhra Pradesh v. P.Laxmi reported in 2008 (4) SCC 720 and submitted that democracy does not consist, merely in people exercising their franchise once in every five years to choose their rules and one vote is cast. Democracy means that propagation of ideas, opinions and views of the speakers to the citizens, who have fundamental right to know every public act, everything that is done in a public way, by public functionaries. The issue involved in the above writ petition was relating to permission, for a procession with regard to Tamilians in Srilanka and against the arrest of the general secretary of that party. Though the learned Additional Government Pleader submitted that the date for which, permission sought for, had already been expired and therefore, the Writ Petition has become infructuous and even otherwise, granting permission for a procession, would give rise to law and order problem, this Court, having regard to the fundamental rights of a citizen in defending civil liberties and the constitutional guarantee, set aside the impugned order therein and consequently, permitted the petitioner to make a fresh representation to the Commissioner of Police, Chennai, the third respondent therein, with a further direction to him to pass orders, within two days from the date of receipt of a copy of the representation. This Court deems it fit to reproduce the views extracted by the Supreme Court in State of Andhra Pradesh v. P.Laxmi reported in 2008 (4) SCC 720, wherein, at Paragraphs 88 and 91, held as follows:
"88. In our opinion, therefore, while Judges should practise great restraint while dealing with economic statutes, they should be activist in defending the civil liberties and fundamental rights of the citizens. This is necessary because though ordinarily the legislature represents the will of thepeople and works for their welfare, there can be exceptional situations where the legislature, though elected by the people may violate the civil liberties and rights of the people. It was because of his foresight that the Founding Fathers of the Constitution in their wisdom provided fundamental rights in Part III of the Constitution which were modeled on the lines of the US Bill of Rights of 1791 and the Declaration of the Rights of Man during the Great French Revolution of 1789.
91. It must be understood that while a statute is made by the people's elected representatives, the Constitution too is a document which has been created by the people (as is evident from the Preamble). The Courts are guardians of the rights and liberties of the citizens, and they will be failing in their responsibility if they abdicate this solemn duty towards the citizens. For this, they may sometimes have to declare the act of the executive or the legislature as unconstitutional."
20. When Thiru.Nanjil Sampath, was detained in Crime No.1127 of 2009 u/s 153-B(l)(a) and 13(l)(b) of Unlawful Activities Prevention Act, 1967, wife of Thiru.Nanjil Sampath has challenged the detention order in H.C.P.No.400 of 2009, dated 21.04.2009 [S.Sasikala Sambath v. State of Tamil Nadu and others]. The detention order came to be passed under following circumstances: Liberation Tigers of Tamil Eelam (LTTE) is an unlawful association under the Unlawful Activities (Prevention) Act, 1976 and banned by the Government of India and republished in the Tamil Nadu Government Gazette Extraordinary order vide G.O.Ms.No.606, Public (SC) Department dated 16.05.2008. The said LTTE continues to remain as a strong terrorist movement and stimulate the secessionist sentiments to enhance the support base of the LTTE in Tamil Nadu, as long as Srilanka continues to remain in a state of ethnic strife, born by the demand for Tamil Eelam which finds a strong echo in Tamil Nadu due to the linguistic, cultural, ethnic and historical affinity between the Srilankan Tamils and the Indian Tamils. On 1.3.2009, at about 2.00 p.m., the detenu delivered a speech at Harvey Kumarasamy Kalyana Mandapam in Tirupur North Police Station limits, in a meeting organized by the Students Federation in respect of the prevailing conditions of Tamil population in Srilanka. A complaint was given by one Thiru K.Ganesh on 6.3.2009 and the same was registered in Tirupur North Police Station Crime No.1127 of 2009 under Section 153(B)(1)(a) IPC r/w 13(1)(b) of Unlawful Activities (Prevention) Act, 1967. He was arrested at about 8.00 p.m., on 7.3.2009 and produced before the Judicial Magistrate, Avinashi. In the meantime, the Inspector of Police (L&O), Tirupur North Police Station sent his affidavit dated 12.3.2009 together with the connected materials to the detaining authority recommending action under Section 3(2) of the National Security Act. Ultimately, he was detained, alleging that there was an imminent possibility of the detenu coming out on bail and that the speech delivered by him was prejudicial to the maintenance of public order and in order to effectively preventing the detenu from indulging in such activities, he should be detained under the National Security Act. When the said order of detention was challenged in the abovesaid HCP., a Division Bench of this Court, after considering the rival submissions and several judgments of the Supreme Court, at Paragraph 9, observed that, "9. Insofar as the speech allegedly made by the detenu on 1.3.2009, the sponsoring authority has filed the relevant materials including the paper cuttings. There are materials for the detaining authority to satisfy himself as to those materials to form an opinion that the detenu had indulged in the act which is prejudicial to the maintenance of public order."
21. The Division Bench of this Court, at Paragraph 11, has further observed that, "11. In order to clip the wings of a person involved in a case rendering himself liable for criminal prosecution, the detaining authority must not only satisfy himself but also establish that the act of such person had affected both the public order and the security of the State. There are no materials whatsoever placed before the detaining authority for such satisfaction except the speech delivered by the detenu. On this ground as well, it must be held that the detaining authority had merely accepted the recommendation of the sponsoring authority without there being any supportive materials rendering the detention order illegal on the ground of non-application of mind."
22. In a decision relied on by the learned counsel for the petitioner in C.Sakthivel v. Commissioner of Police reported in 2010 (5) CTC 134, the District Secretary of Bahujan Samaj Party, North, Chennai, has sought for permission to convene a protest meeting on 30.07.2010, in front of Memorial hall for staging a demonstration. Permission was denied on the ground that condemning the administrative action against the individual would create unrest and it would affect the administrative functioning in initiating administrative actions. Dealing with the above aspects, a learned Singe Judge of this Court, after considering the judgments in Adhirai M.M. Ibrahim v. The Commissioner of Police, Chennai City, Chennai reported in 2005 (3) CTC 260, Destruction of Public and Private Properties v. State of A.P., reported in CDJ 2009 SC 752, and Rama Muthuramalingam v. The Deputy Superintendent of Police reported in 2004 (5) CTC 545, at Paragraphs 16 and 18, held as follows:
"16. Law is well settled, as pronounced by the Supreme Court as well as this Court, that reasonable restrictions for the purpose mentioned in Article 19(2) alone can be the reasons to refuse such a permission. A circumspection and clear analysis of the case on hand would not give any such impression for this Court that the demonstration contemplated by the petitioner is against any particular administrative function or otherwise, but, instead, they aim to protest against the action of the Government. If such permission is granted, it is always open for the authorities to regulate the same and also anything illegal being done and they can have every right to proceed against the perpetrators.
18. In view of my discussion in the foregoing paragraphs and on analysing the various pleadings and contentions put forth by the learned Counsel on either side, I am of the considered opinion that the impugned order of the respondent cannot be sustained. Accordingly, it is set aside. The respondent, taking into account a fresh request, if any made by the petitioner to conduct demonstration on any future date in the place sought for, is directed to accord permission. The respondent is at liberty to regulate the demonstration by deputing proper police officers to be present at the meeting. If, at the meeting, the police officers find anything illegal being done, it is open for them to take action against the persons concerned as may be considered necessary in the circumstances."
23. The contentions of the respondents that Thiru.Nanjil Sampath delivered a speech on 01.03.2009, at 2.00 p.m., at Harvey Kumarasamy Kalyana Mandapam, in Tiruppur North Police Station Limit, organized by a Student Federation, in respect of the present condition of Tamil Population in Sri Lanka and consequently, a criminal case has been registered on the file of Tiruppur North Police Station in Crime No.112 of 2009 u/s 153-B(l)(a) and 13(l)(b) of Unlawful Activities Prevention Act, 1967 against him and that he was arrested for committing the above said offences, for acting in a manner prejudicial to the maintenance of public order and therefore, to prevent any possibility of law and order situation, permission to conduct a meeting was denied, are no longer available to the respondents, in view of the Division Bench of this Court in H.C.P.No.400 of 2009, dated 21.04.2009 [S.Sasikala Sambath v. State of Tamil Nadu and others], which has set aside the detention.
24. Perusal of the impugned order shows that only reason stated by the respondents, for denying permission to hold a public meeting, is registration of the Criminal case, stated supra. The contention of the learned counsel for the petitioner that even as on today, no charge sheet has been filed has not been denied. According to the respondents, there were festivals, Ramzan and Vinayagar Sathurthi in the month of September on 10.09.2010 and 11.09.2010 respectively, and due to the sensitiveness of the above said festivals, Tiruppur Sub-Division was under strict surveillance of the Police and therefore, in order to maintain a law and order problem, Public Meetings and processions were not permitted to be conducted by the petitioner. The abovesaid reason has not been stated as grounds for rejection and therefore, it is not open to the respondents to add or improve their case, by filing counter affidavit.
25. It is well settled in a catena of decisions that the impugned order has to fall or succeed on the reasons stated therein and it cannot be improved in the form of a counter affidavit or oral submissions. Files are not placed before this Court, as to whether the said reasons were taken into consideration by the first respondent, while denying permission to conduct a public meeting. Even if there are festivals, it is the duty of the police to regulate and maintain law and order and on that sole ground, permission to conduct a meeting, cannot be denied. Useful reference can be made to the decisions of the Apex Court, as to whether, the impugned order can be supported with any fresh reasons, in the form of counter affidavit.
26. In Mohinder Singh Gill v. Chief Election Commr., reported in 1978 (1) SCC 405, the Apex Court, at Paragraph 8, held as follows:
"8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, it validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose, J. in Commr., of Police, Bombay v. Gordhandas Bhanji, reported in AIR 1952 SC 16:
"Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.""
27. The above position of law has been restated in Hindustan Petroleum Corpn. Ltd., v. Darius Shapur Chenai reported in 2005 (7) SCC 627, and at Paragraph 24 of the judgment, the Supreme Court held as follows:
"When an order is passed by a statutory authority, the same must be supported either on the reasons stated therein or on the grounds available therefor in the record. A statutory authority cannot be permitted to support its order relying on or on the basis of the statements made in the affidavit dehors the order or for that matter dehors the records."
28. Yet another factor to be considered in this case is that even after registration of the criminal case, stated supra, the said speaker has been permitted to address public meetings on 09.09.2009 and 17.06.2010 and therefore, citing the abovesaid criminal case, as the sole basis for denying permission, cannot be sustained.
29. In the light of the decisions stated supra, protecting the constitutional rights of a citizen guaranteed under Articles 19(1)(a) and 19(1)(c) and 21, to express his views, within the constitutional limitations, the restriction placed on the petitioner to hold a public meeting with the participation of the abovesaid speaker, is arbitrary. Therefore, the impugned is liable to be set aside and accordingly, set aside. It is open to the petitioner to make a fresh representation to conduct a public meeting on any future date and if such request is made, the respondents shall consider the same immediately and grant permission to the petitioner to hold a public meeting in accordance with law and to provide adequate protection for the smooth conduct of the meeting and take all regulatory measures.
30. In the result, the Writ Petition is allowed. No costs. Consequently, connected Miscellaneous Petition is also closed.
19.01.2011 skm To
1.The Deputy Superintendent of Police Tiruppur Sub-Division, Tiruppur 641 607.
2. The Inspector of Police, Tiruppur South Police Station, Tiruppur 641 607.
S. MANIKUMAR, J.
skm W.P.No.20174 of 2010 19.01.2011